Smith v. North River Ins. Co.

• Court: Alabama Supreme Court
• Writing for the Court: SHORES; TORBERT
• Citation: Smith v. North River Ins. Co., 360 So.2d 313 (Ala. 1978)
• Decision Date: 30 June 1978
• Parties: Clifford SMITH et al. v. The NORTH RIVER INSURANCE CO., a corp. S.C. 2803.

Page 313

360 So.2d 313

Clifford SMITH et al. v. The NORTH RIVER INSURANCE CO., a corp.

S.C. 2803.

Supreme Court of Alabama.

June 30, 1978.

Jack Clarke, Northport, for appellants.

William A. Scott, Jr., Wayne Morse, Jr., Birmingham, for appellee.

SHORES, Justice.

Arthur Dixon and Fred Williams were involved with the same woman. At a party, attended by all three, Dixon shot Williams to death. In the process, Clifford Smith was also wounded. Smith sued Dixon alleging negligence and wantonness. Dixon called upon his insurer, North River Insurance, to defend the action. North River refused, claiming that the shooting was excluded by the terms of its homeowners policy with Dixon. The insurer filed a declaratory judgment action, and joined as defendants the parties to the tort action, to determine whether it had a duty to defend and whether the policy covered the incident. The trial court enjoined the litigation of the tort action pending disposition of the declaratory judgment action.

The policy provisions pertinent here are as follows:

"COVERAGE E PERSONAL LIABILITY

"This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, Caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. . . ." (Emphasis Added)

"ADDITIONAL DEFINITIONS

". . .ONA

"5. 'Occurrence': means an accident, including injurious exposure to conditions, which results, during the policy term, in bodily injury or property damage." (Emphasis Added)

"EXCLUSIONS

". . .ION

"1. Under Coverage E Personal Liability

". . .er

"f. to bodily injury or property damage which is either expected or intended from the standpoint of the insured.

North River contended that the injuries to Smith were expected or intended from the standpoint of Dixon and thereby excluded under the policy.

Motions for summary judgment by both sides were denied, and the issues were tried to a jury. The jury found that there was no coverage under the terms of the policy, and no duty to defend on the part of North River. The defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial. Their motion was denied and this appeal followed.

The appellants argue that the trial court should have dismissed the declaratory judgment action because the question of Dixon's intent was at issue in the tort action pending between Smith and Dixon; that the court should not have entered judgment in favor of the insurer in the declaratory judgment while the possibility existed that a claim may be asserted against its insured which is covered by the terms of the policy; and finally, that the jury's verdict was against the preponderance of the evidence.

Appellants are correct that an action for declaratory judgment may not supersede the determination of an issue already pending in another action filed prior to the declaratory judgment. Sparks Construction Co., Inc. v. General Mut. Ins. Co., 334 So.2d 897 (Ala.1976); Auto Mut. Ind. Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938).

This is not such a case, however. The issue raised in the declaratory judgment action was whether the insurance company was obligated, under the policy provisions, to defend the action brought by Smith against his insurer. This issue turned on whether the injury, the basis of the personal injury suit, was "expected or intended," as those terms are used in the contract between the insurance company and its insured. That is not the issue in the personal injury suit.

In Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754 (Ala.1976), the same procedure was followed. There, the insured pushed an individual out of a door, causing him to fall down several steps and strike his head on a concrete patio. The injury resulted in permanent brain damage. The...